Don’t Study the Constitution?

Richard Posner, the iconoclastic judge of the Seventh Circuit Court of Appeals and one of the founders of the “Law & Economics” movement, says there is “no value” in studying the U.S. Constitution. People, naturally, are in an uproar over this — people who know nothing about Posner’s views, that is. Anyone who has paid even a shred of attention to what Posner has been writing about for the last 20 years should know by now that he takes an extremely low view of the sub-discipline known as constitutional law. In fact, Posner takes a fairly low view of jurisprudence generally and theories of morality specifically. At a certain level, I have a hard time disagreeing with him. Regardless of who is ultimately responsible, contemporary constitutional law — including the judicial behavior of the Supreme Court of the United States (SCOTUS) — is political, not legal. While there are some fundamental constitutional rules governing areas such as criminal procedure and speech which most law students should be familiar with upon graduation, the large bulk of extant constitutional law isn’t necessary to study. Supposedly time-honored canons of interpretation, along with various theories of construction, mean very little these days; they are artifacts which should interest historians more than lawyers. No, maybe this isn’t how things “ought to be,” but it is where matters lie in 2016 and we’d all be better off if we didn’t kid ourselves that it’s otherwise.

Speaking from my own experience, I am pretty confident that I learned next-to-nothing of lasting value from two semesters of constitutional law. My time would have been better served reviewing the topics tested on the bar exam and leaving it at that. (The irony here is that the law review comment I wrote during my 2L year was on…the Eighth Amendment.) Now, had I ambitions to become a constitutional-law scholar or political historian, there would of course have been great value in studying the constitution, its intellectual underpinnings, and all of the relevant case law which has stacked up over the centuries. But how many people are going to “ascend” to that level? And how many people do we even need in such roles? As Posner has pointed out before, the academic constitutional-law enterprise is pretty worthless, both practically and theoretically. Most forays into constitutional law concern the writer(s) masking their own pet moral views under the cloak of legality and claiming this is why SCOTUS was right/wrong in a particular case (or series of cases). Posner is right. Who cares? And beyond that, who has ever read a law review article praising/damning a particular case because of some abstract moral theory and been convinced to change their mind on the matter? (Ok, I am sure some impressionable law students have, but outside of keeping the lights on in law schools with their hard-earned debt, they don’t really count.)



  1. Andrew
    June 28, 2016

    So you’re saying we should drop the pretense that supposedly “fair” and “constitutional” court system is anything more than political? Stop using “tradition” and intellectual arguments as a mask for personal opinions?

    This is pretty reasonable. Cynical, but reasonable.

    I think it’s problematic, though, given that this would mark a massive “bottoming-out” for the level of dialogue in the jurisprudential conversation.

    Imagine if we said something similar about the Church. “All the bishops coming to these synods and councils should just drop the pretense of using canons and encyclicals and patristic opinions and scholastic traditions and Bible verses from their arguments, and just assert their partisan opinion stripped naked of all those disingenuous trappings.”

    For me as an intellectual historian, that’s basically a repudiation of everything I’ve given my life to.

    1. gregorystackpole
      June 28, 2016

      I’m tempted to think that this cynical vision applies both to the state and to the Church, which is why I just stopped caring too much. You can try and woo me with your integralistic vision, but I don’t have the interest to hear it. I’ve already bought your other product (cynicism), and these two are in competition.

      …OK, so I try to hope most of the time.

    2. 123
      June 29, 2016

      People being personally driven by intellectual/religious conviction and courts/synods being political entities are not mutually exclusive. Dismissing it all as “mere politics” would seem to be the charge leveled by those out of power, and lacking in empathy regarding the possibility that others might think about and come to different conclusions than oneself. I think we are also still attempting to pretend that non-mathematics and non-hard sciences is able to “prove” anything in a way approaching what we typically expect in our scientific age. One can make an argument for basic philosophical logic being something like mathematics in this manner, though I’m not sure how objectively that stands up cross-culturally or between logicians.

      1. 123
        June 29, 2016

        And that also doesn’t admit everyone’s opinions are either correct or inconsequential, but it does question whether traditional proofs prove anything objectively to anyone other than the converted. The Truth may not be provable via the traditional non-math, non-science ways.

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